Citation Nr: 1016713
Decision Date: 05/05/10 Archive Date: 05/19/10
DOCKET NO. 08-16 469A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Central Arkansas Veterans
Healthcare System in North Little Rock, Arkansas
THE ISSUE
Eligibility for a powered mobility device, such as a powered
wheelchair or scooter.
REPRESENTATION
Veteran represented by: Paralyzed Veterans of America,
Inc.
WITNESS AT HEARING ON APPEAL
None
ATTORNEY FOR THE BOARD
A. D. Jackson, Counsel
INTRODUCTION
The Veteran had active military service from March 1970 to
February 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 2008 determination of the
Department of Veterans Affairs (VA) Central Arkansas Veterans
Healthcare System in North Little Rock, Arkansas. In that
determination, the Central Arkansas Veterans Healthcare
System's Prosthetic Treatment Center denied the Veteran's
request for a power mobility device.
A hearing before the undersigned Acting Veterans Law Judge
was scheduled for the Veteran in December 2009;
unfortunately, he was unable to attend due to a recent
hospitalization. As such, the undersigned determined that
good cause had been presented and allowed his representative
to offer oral argument on his behalf. 38 C.F.R. § 20.700(b)
(2009). At the time of the hearing, the Veteran's
representative indicated that the Veteran waived his right to
another Board hearing and that his arguments would be offered
in lieu of the Veteran's testimony.
Additionally, at the hearing, the Veteran's representative
requested that the national office of the service
organization be provided with an opportunity to review the
Veteran's case prior to the issuance of a final decision. As
such, while this remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of the Veteran's appeal, upon return of the Veteran's
case to the Board, if in order, the Veteran's representative
at the national office of the service organization will have
an opportunity to review the claims file and offer additional
argument on the matter. 38 C.F.R. § 20.1100(b) (2009).
REMAND
The Board notes that VA shall furnish on an ambulatory or
outpatient basis such medical services as are needed. See 38
C.F.R. § 17.93; see also 38 C.F.R. § 17.150.
Motorized wheelchairs may be considered for Veterans who have
a disability resulting in the loss or loss of use of both
lower extremities, combined with a loss, or loss of use, or
severe impairment of at least one upper extremity to the
extent that it is medically determined that the Veteran is
incapable of satisfactorily propelling a manual wheelchair.
Motorized wheelchairs may also be considered for eligible
Veterans who suffer from severe chronic obstructive pulmonary
disorder, multiple sclerosis, spinal cord injury, stroke,
amputations, degenerative joint disease, rheumatoid
arthritis, and/or those Veterans diagnosed with severe
cardiovascular disease. See VHA Handbook 1173.06.
In the March 2008 determination on appeal, the Veteran's
claim for entitlement to a powered mobility device was denied
because it was found that he did not meet the objective
medical criteria for a powered mobility and/or lifting
device. The determination letter indicates that the criteria
require objective documentation of the loss of function of at
least three extremities, or objective testing establishing
neuromusculoskeletal or cardiopulmonary impairment severe
enough to make manual wheelchair propulsion and ambulation
impossible. However, the folder made available to the Board
contains no medical evidence to support the conclusion
reached in the March 2008 determination.
At the December 2009 Board hearing, the Veteran's
representative argued that the Veteran has arthritis in both
shoulders and knees that makes operating a manual wheelchair
impossible. It was indicated that a scooter-type model is
the only type of powered mobility device he could operate.
He also indicated that the Veteran's treating physician
concluded that he was eligible for a powered mobility device.
The Board notes that the Veteran is qualified, as a lay
person, to report symptoms such as pain. See Savage v.
Gober, 10 Vet. App. 488, 495 (1997). Likewise, where the
record does not adequately reveal the current state of the
Veteran's disability, the fulfillment of the statutory duty
to assist requires a thorough and contemporaneous medical
examination. See Allday v. Brown, 7 Vet. App. 517, 526
(1995). Therefore, given that the limited medical evidence
associated with the file, the Veteran should be afforded a
medical evaluation to determine the current severity of any
physical disabilities in the context of the eligibility
criteria for a powered mobility device. See 38 U.S.C.A. §
5103A(d).
A note on the folder indicates that the claims file on appeal
is a duplicate combined health record. This suggests that
the Veteran may have more complete claims folder containing
prior claim adjudication materials. If such a claims file
exists, either at the VA agency of original jurisdiction
(AOJ) in North Little Rock, Arkansas, or elsewhere, that
claims file should be matched with the file provided to the
Board.
Accordingly, the case is REMANDED for the following action:
1. The Veteran should be asked to
provide the names, addresses, and
approximate dates of treatment of all VA
and non-VA health care providers who have
provided treatment for his disabilities.
When the requested information and any
necessary authorizations have been
received, the AOJ should request legible
copies of all pertinent clinical records
that have not been previously obtained.
All reasonable attempts should be made to
obtain such records. If any records
cannot be obtained after reasonable
efforts have been made, issue a formal
determination that such records do not
exist or that further efforts to obtain
such records would be futile, which
should be documented in the claims file.
The Veteran must be notified of the
attempts made and why further attempts
would be futile, and allowed the
opportunity to provide such records, as
provided in 38 U.S.C.A. § 5103A(b)(2) and
38 C.F.R. § 3.159(e).
2. Any claims folder containing prior
claim adjudication materials for the
Veteran should be associated with the
record on appeal.
3. After completing the above
development, schedule the Veteran for an
appropriate VA examination in order to
assess his current disabilities with
respect to the criteria necessary for a
motorized wheelchair. The file,
including a complete copy of this remand,
should be made available to, and reviewed
by, the designated examiner. The
examiner should take a detailed history
from the Veteran, conduct an examination,
and ensure that all tests necessary to
providing the opinion requested below are
conducted.
In consideration of the examination
results, the examiner should evaluate the
severity of any current physical
disabilities within the context of the
pertinent eligibility criteria. The
examiner should then render an opinion as
to whether the Veteran meets the criteria
for a powered mobility device, i.e., loss
or loss of use of both lower extremities
combined with a loss or loss of use or
severe impairment of at least one upper
extremity to the extent that the Veteran
is incapable of satisfactorily propelling
a manual wheelchair. The bases for the
opinion provided should be explained in
detail.
After the requested examination has been
completed, the report should be reviewed
to ensure it is in complete compliance
with the directives of this remand. If
the report is deficient in any manner, it
should be returned to the examiner.
4. After undertaking any other
development deemed appropriate,
readjudicate the issue of eligibility for
a powered mobility device. If the
benefit sought is not granted, furnish
the Veteran and his representative with a
supplemental statement of the case and
afford them an opportunity to respond
before the record is returned to the
Board for further review.
By this remand, the Board intimates no opinion as to any
final outcome warranted. No action is required of the Veteran
until he is notified by VA.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky
v. West, 12 Vet. App. 369 (1999). This claim must be
afforded expeditious treatment. The law requires that all
claims that are remanded by the Board or by the United States
Court of Appeals for Veterans Claims for additional
development or other appropriate action must be handled in an
expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West
Supp. 2009).
_________________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).